Scarborough: Why is Ted Cruz ignoring the Heller decision in his Second Amendment arguments?

posted at 2:41 pm on March 15, 2013 by Allahpundit

Via Mediaite. If all you watched of yesterday’s Judiciary Committee hearing was the viral-video Cruz/Feinstein exchange, you might think Cruz had never heard of Heller. Didn’t Scalia specifically say in the majority opinion that some types of weapons could still be banned under the Second Amendment? And didn’t Cruz strongly imply the opposite in his question to Feinstein, suggesting that Congress can’t pick and choose certain types of weapons to ban? Why, clearly, Harvard Law grad Ted Cruz is willfully deceiving the public into thinking the Second Amendment is more absolute than the Supreme Court says it is. He’s acting like Heller never happened!

Like I say, that’s what you might think if you watched Cruz-versus-Feinstein and nothing more. If you watched the rest of the Judiciary Committee hearing, you know better. See, for example, the second clip below, from the very same hearing, in which Cruz specifically addresses the Heller case and the claim from gun-control advocates like Scarborough that Feinstein’s assault-weapons ban is okay under the Court’s reasoning. He’s not trying to mislead anyone about what the Court said. He’s arguing within the parameters of Heller itself. Here’s the relevant passage from Scalia’s majority opinion (citations omitted):

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues… Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”… We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”…

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The question for the Court if a new assault-weapons ban ever passes will be whether, say, an AR-15 is a “dangerous and unusual weapon” that’s not “in common use.” That’s precisely the question Cruz is anticipating and answering in the second clip below. No, the AR-15 is not “unusual”; it’s one of many, many, many models of semiautomatic rifles out there, albeit a bit more customizable than most. No, it’s not especially “dangerous.” If you’re worried about mass shootings, you have at least as much to fear from a lunatic wielding a light, easily concealed standard semiautomatic pistol than someone lugging around an AR-15. Yes, it’s “in common use.” Boy, is it ever. Anything can happen if/when the Court takes this question up, especially if Obama gets to replace one of the conservative justices with a liberal, but it’s easy to imagine the assault-weapons ban failing on Heller’s own terms. You don’t have a right to own a bazooka (dangerous! unusual! not in common use!), but the most popular semiautomatic rifle in America?

As an antidote to Scarborough, read Jay Nordlinger’s short but trenchant post at the Corner about Feinstein’s approach to the constitutionality of laws. Why should Congress restrain itself? That’s what Supreme Courts are for, right?

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

In the landmark case of District of Columbia v. Heller, Cruz drafted the amicus brief signed by attorney generals of 31 states, which said that the D.C. handgun ban should be struck down. Cruz also presented oral argument for the amici states in the companion case to Heller before the United States Court of Appeals for the District of Columbia Circuit.

I just watched the cruz piece…skipping over the lefty entertainment provided by joe.

joe is just interested in headlines and hearing himself talk…no real thought or homework needs to be done…sweet job if you can get it. Same thing with the View. Just a bunch of illinformed people sitting around sharing their ill-informed, illogical, emotional, fuzzy leftiest ‘I Care’ chatter

At some point you have to go on these shows and confront the critics directly, distateful as that might be.

Breitbart was never afraid to go into the belly of the beast.

Cruz should challenge Scarborough to a debate.

commodore on March 15, 2013 at 2:52 PM

I disagree. There is nothing to be gained by going on these shows. The questions are always loaded and the agenda is clear. Focus on other ways of getting the message out and leave the liberal echo chambers scrambling to find something new to say.

Between the Commerce Clause and the General Welfare Clause, the Constitution has been ripped open and snapped inside out. What began as a document to anchor society in a timeless set of principles, based on a republic with a narrowly limited central government, has been savaged into a charter for unlimited expansion at the very level least responsive to the people.
Tragically, Franklin’s aphorism has been answered: No, I’m sorry but we couldn’t keep it. Thanks for the effort but the republic you labored so hard for, and sacrificed so much for, is gone. What we are building on its ashes is a democracy along the lines of the French Revolution, not the republic left to us by the American Revolution.
What began with George Washington, is rapidly deteriorating to a modern version of Benito Mussolini or Hugo Chavez.

Cruz led them right where he wanted to, then blew up the argument again. Feinstein et. al. didn’t see it coming, and genius Scarborough with the benefit after commenting after the fact, still didn’t see it.

An anecdote from 50 years ago applies as a parable here — Back in the early 1960s the good folk from General Foods contracted with Cascade Productions to do a new series of Kool Aid commercials featuring Bugs Bunny. But first, they wanted to make sure that the company’s director, Tex Avery, knew how to draw Bugs Bunny.

In 1940, Tex Avery created Bugs Bunny.

Which he let them know in no uncertain terms. So much for not doing your homework.

Same situation here — When Joe Scarborough was on his rant this morning arguing that Ted Cruz didn’t understand ‘Heller’, did Joe not realize Ted Cruz argued the winning side on ‘Heller’ before the U.S. Supreme Court? You’d think before you go on a rant like that you’d do a little homework, but Scarborough probably cares less about accuracy than in remaining in good terms with the execs at MSNBC by attacking the people they and their viewers hate the most. And Ted Cruz — especially with his inoculation from having the race card played on his — defiantly has moved to the top of the left’s Emmanuel Goldstein list for 2013.

Who wants to bet that when someone brings to Scarborough’s attention that Cruz did, in fact, discuss Heller and its implications to this bill that Scarborough (1) doubles down on stupid rather than (2) admit that he shot off his mouth without having all of the facts?

It’s bad enough that the lefties, libs, and Dems routinely lie and deliberately mislead. Now people like Scarborough who claim not to be a part of that group are doing it.

Or maybe Scarborough is just ignorant and pandering to his MSNBC audience. Playing his designated role as the “reasonable” conservative there to criticize “unreasonable” conservatives on a left wing propaganda network. It is how he makes his pieces of silver after all. That is, if he really is what he claims to be.

Cruz Missile; Rand Paul. Interesting to see who has the Regressives and Lefties waking up in cold sweats at night. Looks like Feinstein’s still crying to anyone who’ll lend an ear to her tragic plight of being grilled during the senate hearing. Silly woman. Funny how women like Bachmann and Palin take shot after shot and keep on smiling, while women like this wither and crumble under anything less than deferential treatment. Ironic.

Remind me who won the argument again? Certainly not the aggrieved party.

Ted Cruz is a Constitutional expert in law and history. We call that substance.

Joe Scarborough is a TV circus clown who juggles his bowling pins for the 10 liberals watching his show.

The problem in educating our country lies with fools and sophists like Joe. His opinions are meaningless because they are not grounded in anything but superficial knowledge and incoherent contra-factual opinions. Then they are seconded by that empty headed parrot sitting across the table.

If that is all a person watches each day, they will probably be dribbling oatmeal down their chin and playing a trombone for quarters outside the local mall in a few years.

The President refuses to follow the constitution.
The Congress refuses to impeach the president forcing him to follow the constitution because it refuses to follow the constitution. Both pushing off the constitutional question to the court who turns around and argues that the people voted for these turds, so what ever the elected people want is sanctioned so it is up to the American people to make the government follow the constitution.

If you try to bring up the only real way in which the American people can FORCE the FORCE of Government into following the constitution and you are shut down by the censor filter.

There is no responsible party, everyone is responsible for things they have no real control over and thus no responsibility or control.

The question for the Court if a new assault-weapons ban ever passes will be whether, say, an AR-15 is a “dangerous and unusual weapon” that’s not “in common use.” That’s precisely the question Cruz is anticipating and answering

Ding, ding, ding! Nailing down the Heller case to such common terms as that is exactly how you explain to people why laws like this are wrong and unconstitutional!

It’s Friday…and I can’t wait for someone to bring this up in a conversation this weekend. Yeah, you sting that one friend a bit, but you get a chance to enlighten everyone else listening to the truth.

There is also a reason for Mika. Not many people can make Joe look like the smart one.

Obama and Axelrod, with willing collaboration of Democrats and the media, have finally made reality irrelevant in many respects and replaced it with a manufactured narrative more useful to moving public opinion. It doesn’t matter one whit to our growing Idiot Class that Scarborough is absolutely full of sh!t and Cruz is a brilliant constitutional lawyer and scholar (a real one, not like BO) who knows these issues as well as anyone in the country.

Even without a second amendment, the Federal government has no right to regulate guns in the manner in which they seek to regulate them (in other words, ban them). They can only do what they are authorized under Article I Section 8, and the responsibility to regulate firearms is not one of them, even under the broadest interpretation of the Constitution. It is left to the states.

Cruz should have told Feinstein it is up to the states to regulate things like pornography and guns. The feds have nothing to do with it.

Who cares what the Supreme Court says anymore? It’s just another rubber stamp for the proggies. It has no legitimacy anymore as far as I’m concerned. One doesn’t have to be a legal scholar to understand what the Second Amendment says, it’s very clear. All these micro-arguments are a diversion. According to the Constitution, we can all own whatever kinds of arms we want. The Supreme Court is a joke. Our entire government has been hijacked by totalitarian scum. Time to resist.

Actually, McLaim did. Since Cruz was a big part of Paul’s filibuster, and IMO was as on point as Rand and sometimes even more so, when McLaim next day called Rand “wacko” Cruz was also included in that smear.

So when are they going to ban civilian style sonic cannons such as the Long Range Acoustic Device. It has to fall under the unusual weapon and LRAD could very easily be turned into something as simple as a car alarm deterrent.

Joe knows who pays his salary. He tries to say in this clip that the people that support or agree with Cruz are ignorant of facts and don’t know how to read. And he says that after not watching all of the testimony…. only what his employers showed him. So he is basically flying blind, and stupid. If he didn’t speak nonsense, especially while being arrogant about his and the vast majority of his guests and viewers being ignorant, he would have no ratings, show, or job. He fits right in at MSNBC.

Joe is playing the role of the useful idiot here. He knows damn well what Cruz was getting at and what the duties of a Senator and Congressman are vis-a-vis writing constitutional laws. In this particular argument he’s attempting two things: 1) CYA for Fienstien and the gun grabbers and 2) smearing Ted Cruz. In so doing he has exposed himself as a tool of the left.

The Heller decision said that “dangerous and unusual weapons which are not in the common usage” can be regulated or banned by the government. It said that there was an individual right to bear arms; the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” (p 8); the handgun bans “amounted to a prohibition of an ENTIRE CLASS OF ‘ARMS’ that is overwhelmingly chosen by American society for that lawful purpose.”

Dangerous:

The AR-15 is the #1 rifle sold in the United States. It is no more dangerous than handguns. In fact, it kills FAR less. In 2011, 72.5% of all gun-related homicides were committed using handguns. In 2011, 3.8% (323) of ALL gun-related homicides in 2011 committed with rifles of ALL KINDS, INCLUDING “ASSAULT RIFLES” LIKE AR-15s.

Unusual:

There is NOTHING unusual about AR-15-style rifles…unless one is afraid of black, skeery, plastic thingies.

Don’t believe me? Then, look at the pictures of these two guns and ask yourself, “Does one really look that much more ‘dangerous, unusual and uncommon’ than the other?”

The Court is obviously oriented towards prohibiting those weapons which are in excess of those which are commonly carried by our police for their own self defense. On the other hand, the court is disposed to allow those weapons which are commonly carried by our police for their own self-defense.

If a policeman needs a certain class of weapon to confront criminals, than a private citizen is entitled to same.

That means you can’t have a nuke or an RPG or a tank, but what you can have is certainly everything the liberals have named as wanting to prohibit today.

Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”… We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Actually, at the time of the Revolution and later when the Constitution was written… many farmers had access to the Kentucky Long Rifle, which had longer range and better accuracy, than the common muskets used in the armies.

So if we use that for comparison, we should indeed have access to military grade weaponry. After all, most of us are members of the militia, as defined by our respective State Constitutions.